Citation Nr: 0810761
Decision Date: 04/01/08 Archive Date: 04/14/08
DOCKET NO. 02-07 030 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to an initial disability rating in excess of
30 percent for an adjustment disorder with mixed emotion,
anxiety and depression.
2. Entitlement to a total disability rating based on
individual unemployability (TDIU), to include whether the
claim should be referred to the Director, Compensation and
Pension Service.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The veteran served on active duty from November 1990 to April
1991, plus had prior periods of active duty for training
(ACDUTRA).
These matters initially came to the Board of Veterans'
Appeals (Board) on appeal from an October 2001 decision of
the RO that granted service connection for an adjustment
disorder with mixed emotion, anxiety and depression,
evaluated as 30 percent disabling effective June 1998. The
veteran timely appealed for a higher initial disability
rating.
These matters also came to the Board on appeal from an
October 2002 decision that denied entitlement to a TDIU.
In September 2003, December 2005, and March 2007, the Board
remanded the matters for additional development.
FINDINGS OF FACT
1. Since the effective date of service connection, the
veteran's adjustment disorder with mixed emotion, anxiety and
depression, has been manifested by symptoms that reflect no
more than occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks; circumstantial or
stereotyped speech, panic attacks, difficulty in
understanding complex commands, impaired memory, impaired
judgment, and impaired abstract thinking have not been
demonstrated.
2. Service connection is in effect for adjustment disorder
with mixed emotion, anxiety and depression, rated as 30
percent disabling; and for lumbar strain with secondary back
myositis, degenerative osteoarthritis of the spine, and left
L4-L5 radiculopathy, rated as 30 percent disabling. The
combined disability rating is 50 percent.
3. The veteran has not worked since 1997; he has work
experience as a salesman and manager for a local newspaper;
and he has at least 16 years of education.
4. The veteran's service-connected back disability is severe
enough to suggest that that he is unable to obtain or retain
gainful employment.
CONCLUSIONS OF LAW
1. The criteria for an initial disability rating in excess
of 30 percent for an adjustment disorder with mixed emotion,
anxiety and depression have not been met at any time since
the effective date of service connection. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7,
4.130, Diagnostic Code 9440 (2007).
2. The criteria for the submission of the claim for a total
rating for compensation purposes based on individual
unemployability to the Director, Compensation and Pension
Service, are met. 38 C.F.R. § 4.16(b) (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held that
proper VCAA notice should notify the veteran of: (1) the
evidence that is needed to substantiate the claim(s); (2) the
evidence, if any, to be obtained by VA; (3) the evidence, if
any, to be provided by the claimant; and (4) a request by VA
that the claimant provide any evidence in the claimant's
possession that pertains to the claim(s).
Through August 2002, August 2004, December 2005, and March
2007 letters, the RO or VA's Appeals Management Center (AMC)
notified the veteran of elements of service connection, the
evidence needed to establish each element, evidence of
increased disability, and evidence needed to award a TDIU.
These documents served to provide notice of the information
and evidence needed to substantiate the claims.
VA's letters notified the veteran of what evidence he was
responsible for obtaining, and what evidence VA would
undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b). VA informed him that it would make reasonable
efforts to help him get evidence necessary to support his
claims, particularly, medical records, if he gave VA enough
information about such records so that VA could request them
from the person or agency that had them.
The letters asked him if he had any additional evidence to
submit, and thereby put him on notice to submit information
or evidence in his possession.
In the June 2006 supplemental statement of the case (SSOC),
the RO or AMC specifically notified the veteran of the
process by which initial disability ratings and effective
dates are established. Dingess v. Nicholson, 19 Vet. App.
473 (2006).
In this case, the veteran has appealed for a higher initial
disability rating assigned for a service-connected adjustment
disorder. Hence, the Board has characterized the issue in
accordance with the decision in Fenderson v. West, 12 Vet.
App. 119, 126 (1999) (appeals from original awards are not to
be construed as claims for increased ratings), which requires
consideration of the evidence since the effective date of the
grant of service connection. As Fenderson held that a claim
for an initial disability rating is distinct from a claim for
increased rating, the requirements of Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008), are not applicable to the
present claim.
Defects as to the timeliness of the statutory and regulatory
notice also are rendered moot in this case, because the
veteran's claims have been fully developed and re-adjudicated
by an agency of original jurisdiction after notice was
provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006).
There is no indication that any additional action is needed
to comply with the duty to assist the veteran. The RO has
obtained copies of the veteran's service medical records and
outpatient treatment records, and has arranged for the
veteran to undergo VA examinations in connection with the
claims on appeal, reports of which are of record. The
veteran has not identified, and the record does not otherwise
indicate, any existing pertinent evidence that has not been
obtained.
Given these facts, it appears that all available records have
been obtained.
There is no further assistance that would be reasonably
likely to assist the veteran in substantiating the claims.
38 U.S.C.A. § 5103A(a)(2).
II. Analysis
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4.
When a question arises as to which of two ratings apply under
a particular diagnostic code, the higher evaluation is
assigned if the disability more closely approximates the
criteria for the higher rating. 38 C.F.R. § 4.7.
In view of the number of atypical instances it is not
expected, especially with the more fully described grades of
disabilities, that all cases will show all the findings
specified. Findings sufficiently characteristic to identify
the disease and the disability there from, and above all,
coordination of rating with impairment of function will,
however, be expected in all instances. 38 C.F.R. § 4.21
(2007).
After careful consideration of the evidence, any reasonable
doubt remaining is resolved in favor of the veteran.
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2007).
Where the question for consideration is propriety of the
initial evaluation assigned, evaluation of the medical
evidence since the grant of service connection and
consideration of the appropriateness of "staged rating" is
required. Fenderson v. West, 12 Vet. App. 119, 126 (1999).
A. Adjustment Disorder With Mixed Emotion Anxiety and
Depression With Depressed Mood
The RO has evaluated the service-connected adjustment
disorder with mixed emotion anxiety and depression under
38 C.F.R. § 4.130, Diagnostic Code 9440, as 30 percent
disabling. The actual criteria for rating psychiatric
disabilities other than eating disorders are contained in a
General Rating Formula.
A 30 percent rating is assigned for occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
normal routine behavior, self-care, and conversation), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, and mild memory loss (such as forgetting names,
directions, recent events).
A 50 percent rating is assigned when there is occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships.
A 70 percent evaluation is warranted for occupational and
social impairment with deficiencies in most areas, such as
work, school, family relationships, judgment, thinking or
mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near-continuous panic or depression affecting ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work-like
setting); and inability to establish and maintain effective
relationships.
A 100 percent evaluation is warranted for total occupational
and social impairment, due to such symptoms as: grossly
inappropriate behavior; persistent danger of hurting self or
others; intermittent ability to perform activities of daily
living (including maintenance of minimal personal hygiene);
disorientation to time or place; and memory loss for names of
closes relatives, own occupation, or own name.
During a July 1997 VA examination, the veteran reported
problems trying to concentrate, despite medical treatment.
Examination revealed that his attention, memory, and
concentration were good; his affect was blunted. His speech
was clear and coherent. The veteran was not hallucinating,
and was not suicidal or homicidal; his insight and judgment
were fair. The examiner diagnosed dysthymia with anxiety
features. A global assessment of functioning (GAF) score of
75 was assigned.
The reports of a January 2001 VA examination and an October
2001 addendum reflect that the veteran was alert, coherent,
adequately dressed, and well groomed. He neither seemed
anxious nor depressed, and his thoughts were expressed in a
logical and coherent manner. His mood seemed euthymic
throughout the interview, and no emotions were observed;
affect was appropriate to thought content. The veteran
complained of sleep difficulties, and reported having
nightmares and hearing voices call his name or scream. He
admitted to suicidal thoughts in the past. The Axis I
diagnoses included generalized anxiety disorder, and
adjustment disorder with mixed emotion (anxiety and
depression, secondary to chronic low back pain). A GAF score
ranging from 51 to 60 was assigned.
During a September 2004 VA examination, the veteran reported
episodes of feeling sad, depressed, irritable; and with loss
of energy, insomnia, anxiety, tension, and loss of interest
in daily living activities. These episodes lasted for
several days. The veteran reported no past history of
psychiatric hospitalization. Examination revealed that the
veteran was appropriately dressed, cooperative, alert, and in
contact with reality. There was no evidence of psychomotor
retardation or agitation. His thought process was coherent
and logical. There was no looseness of association, and no
evidence of disorganized speech. There was no evidence of
delusions or hallucinations. The veteran had no phobias, no
obsessions, no panic attacks, and no suicidal ideas. His
mood was depressed and anxious. His affect was constricted
and appropriate. His memory was intact. His current
symptoms moderately interfered with the veteran's employment
functioning and social functioning. The examiner diagnosed
an adjustment disorder with mixed anxiety and depressed mood.
No other mental disorder was found. A GAF score of 60 was
assigned.
The report of an April 2007 VA examination reveals no
evidence of sleep impairment, hallucinations, inappropriate
or obsessive behavior, panic attacks, or suicidal or
homicidal thoughts. A GAF score of 60 was assigned. The
examiner opined that the veteran did not meet the DSM-IV
criteria for PTSD due to military service. His diagnosed
PTSD was secondary to an attack while employed for a local
newspaper.
The Board notes that, while psychiatric treatment records
dated in 2002 reveal an Axis I diagnosis of PTSD and a GAF
score of 50, service connection is not in effect for PTSD.
As such, symptoms attributable solely to this non-service-
connected disability may not be considered in the evaluation
of the service-connected adjustment disorder with mixed
emotion, anxiety and depression. 38 C.F.R. § 4.14.
In this case, the veteran's adjustment disorder with mixed
emotion, anxiety and depression has been manifested,
primarily, by episodes of depression, irritability, and
anxiety. While these symptoms seemed to occur frequently,
they are, nonetheless, reflective of overall moderate social
and occupational impairment, although generally functioning
satisfactorily with routine behavior and self-care. Such
level of impairment warrants no more than the currently
assigned 30 percent disability rating.
While the veteran reported disturbances of both motivation
and mood, and memory problems at times, these factors, alone,
do not provide a sufficient basis for assignment of an
initial 50 percent disability rating. Significantly, the
veteran has not been found to have circumstantial or
stereotyped speech, frequent panic attacks, difficulty in
understanding complex commands, impaired memory, impaired
judgment, or impaired abstract thinking-all symptoms which
would warrant an initial 50 percent disability rating.
The evidence does not reflect that the veteran's adjustment
disorder with mixed emotion, anxiety and depression has
caused severe impairment at any time in social and
occupational functioning. Symptoms such as grossly
inappropriate behavior, or persistent danger of hurting self
or others are not demonstrated.
While the GAF is a scale reflecting the "psychological,
social, and occupational functioning on a hypothetical
continuum of mental health-illness" (DSM-IV), the assigned
GAF score in a case, like an examiner's assessment of the
severity of a condition, is not dispositive of the evaluation
issue; rather, they must be considered in light of the actual
symptoms of the veteran's disorder (which provide the primary
basis for the rating assigned). See 38 C.F.R. § 4.126(a).
The GAF score ranging from 51 to 60 assigned by recent
examiners in September 2004 and April 2007 reflects moderate
symptoms. Given the clinical findings of "intact memory,"
and "thoughts expressed in a logical and coherent manner,"
the Board finds that the overall evidence warrants no more
than a 30 percent disability rating at any time.
For the foregoing reasons, the Board finds that staged
ratings, pursuant to Fenderson, are inapplicable; and that
the preponderance of the evidence is against the grant of an
evaluation in excess of 30 percent at any time since the
effective date of service connection. 38 U.S.C.A. § 5107(b);
38 C.F.R. §§ 4.7, 4.21 (2007).
B. TDIU Benefits
Total disability ratings for compensation based upon
individual unemployability may be assigned where the
schedular rating is less than total, when it is found that
the disabled person is unable to secure or follow a
substantially gainful occupation as a result of a single
service-connected disability ratable at 60 percent or more,
or as a result of two or more disabilities, provided at least
one disability is ratable at 40 percent or more and there is
sufficient additional service-connected disability to bring
the combined rating to 70 percent or more. For the purpose
of one 60 percent disability, or one 40 percent disability in
combination, the following will be considered as one
disability: (1) disabilities of one or both upper
extremities, or of one or both lower extremities, including
the bilateral factor, if applicable. 38 C.F.R. §§ 3.340,
3.34l, 4.16(a). In determining whether the veteran is
entitled to TDIU, neither his non-service-connected
disabilities nor his age may be considered. Van Hoose v.
Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a).
In this case, the veteran has completed four years of college
education. He reportedly worked as a salesman for a local
newspaper from 1976 to 1997, and during his last year in 1997
he worked as a manager.
Service connection is currently in effect for an adjustment
disorder with mixed emotion, anxiety and depression-
currently rated as 30 percent disabling, as shown above; and
for lumbar strain with secondary back myositis, degenerative
osteoarthritis of the spine, and left L4-L5 radiculopathy-
currently rated as 30 percent disabling. The combined
disability rating is 50 percent. See 38 C.F.R. § 4.25
(2007). This combined disability rating clearly does not
meet the minimum percentage requirement for TDIU under 38
C.F.R. § 4.16(a).
However, where the percentage requirements set forth above
are not met, entitlement to the benefit on an extraschedular
basis may be considered when the veteran is unable to secure
and follow a substantially gainful occupation by reason of
service-connected disabilities, and consideration is given to
the veteran's background including his employment and
educational history. Therefore, rating boards should submit
to the Director, Compensation and Pension Service, for extra-
schedular consideration all cases of veterans, who are
unemployable due to service-connected disability, but who
fail to meet the percentage standards set forth in paragraph
(a) of this section. 38 C.F.R. § 4.16(b).
The Board notes that the September 2003 remand requested
consideration of an increased disability rating for the
veteran's service-connected back disability under the revised
General Rating Formula for spinal disabilities. A review of
the evidence of record does not reflect that an increased
disability rating is warranted.
Symptomatology associated with the veteran's service-
connected back disability initially was consistent with a 40
percent evaluation for severe lumbosacral strain under former
Diagnostic Code 5295, but that a 30 percent disability rating
was assigned by the RO because a back condition had pre-
existed service.
The report of a November 2004 VA examination shows that the
range of motion of the veteran's lumbar spine is to 50
degrees on flexion with pain, to 30 degrees on extension with
pain, to 30 degrees on left and right lateral bending with
pain, and to 30 degrees on rotation to the right and left
with pain. The examiner found no postural abnormalities or
fixed deformities of the thoracolumbar spine. Sensory
examination showed decreased pinprick sensation at L5-S1
level in the right lower extremity. Motor examination showed
no atrophy and showed a normal tone and strength. No
intervertebral disc syndrome was found.
An MRI scan of the veteran's lumbar spine in March 2006
revealed mild degenerative changes.
Under the revised criteria, a 40 percent evaluation is
assigned for forward flexion of the thoracolumbar spine
limited to 30 degrees or less; or, favorable ankylosis of the
entire thoracolumbar spine. Higher evaluations are assigned
for ankylosis, and are not relevant in this appeal.
38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2007).
Notwithstanding the veteran's complaints of functional loss,
the evidence shows that the veteran can flex his
thoracolumbar spine well beyond 30 degrees. He, therefore,
does not meet the criteria for an increased rating under the
General Rating Formula. 38 C.F.R. § 4.7, 4.21.
The veteran has not had any periods of doctor-prescribed bed
rest, and no incapacitating episodes are shown. There is no
evidence of neurological deficits sufficient to warrant a
separate compensable disability rating under any diagnostic
code. Ankylosis of the lumbar spine has not been shown.
Accordingly, there is no basis for a disability evaluation in
excess of the currently assigned 30 percent rating for the
veteran's service-connected back disability under the revised
criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to
5243 (2007).
The Board notes that the September 2003 remand requested
consideration of a TDIU on an extraschedular basis. In
essence, the overall evidence does weigh in favor of a
finding that the veteran is unemployable due solely to his
service-connected back disability. A report of VA
examination in November 2004 reflects the examiner's opinion
that the veteran has limitations in his ranges of motion,
ambulation, standing, and sitting tolerance due to easy
exacerbation of pain in the lumbosacral area; and that the
veteran is unsuitable to perform any kind of job position.
Because of the veteran's service-connected back disability,
he is unable to stand or sit for much longer than 30 minutes.
This evidence shows that the veteran's service-connected back
disability, alone, is of such severity as to prevent him from
engaging in, for example, sedentary work. Nor is the veteran
able to engage in manual labor. While a VA examiner in
September 2002 opined that the veteran was not unemployable
because he used to work in a managerial job that required
frequent travel in the area, that examiner had not reviewed
the veteran's medical records. Even assuming that the
veteran might be able to sustain some employment while
working at a desk for an hour or two, the evidence indicates
that, if employed in such a position, it would only
constitute "marginal employment." See Moore (Robert) v.
Derwinski, 1 Vet. App. 356, 358 (1991).
The Board recognizes that the veteran was awarded Social
Security disability benefits primarily because of his lumbar
strain, and this factor is pertinent to his claim for a TDIU.
After consideration of all the evidence, the Board
acknowledges that the veteran's service-connected back
disability possibly causes total industrial impairment; it
prevents him from performing sedentary work or manual labor.
Accordingly, the Board finds that the veteran's service-
connected back disability precludes him from working or,
alternatively, meets the standard required for a
determination of only "marginal employment."
Again, where there is plausible evidence that a veteran is
unable to secure and follow a substantially gainful
occupation, without any affirmative evidence to the contrary,
the veteran's case is eligible for consideration under 38
C.F.R. § 4.16(b) by referral to the Compensation and Pension
Director. Based on the evidence above, including the
testimony taken in May 2007, it is clear that such referral
is warranted.
At this point, the Board will not make a decision regarding
the veteran's claim for a total rating for compensation
purposes based on individual unemployability under 38 C.F.R.
§ 4.16(b), as we are not permitted to do so. Bowling v.
Principi, 15 Vet. App. 1 (2001). Instead, the Board finds
that this matter should have been submitted to the
Compensation and Pension Director for extraschedular
consideration under § 4.16(b). In this regard, the appeal is
granted. Id. At this point, this claim will necessarily be
REMANDED to the RO for further action consistent with this
decision.
ORDER
An initial disability evaluation in excess of 30 percent for
an adjustment disorder with mixed emotion, anxiety and
depression is denied.
Submission of a claim for a total rating for compensation
purposes based on individual unemployability under 38 C.F.R.
§ 4.16(b) to the Director, Compensation and Pension Service,
is warranted.
REMAND
Given the above, decision, this matter is remanded to the RO
(or Appeals Management Center) for the following action:
The RO should submit the claim for a
total rating for compensation purposes
based on individual unemployability under
38 C.F.R. § 4.16(b) to the Director,
Compensation and Pension Service. The RO
should follow the dictates of § 4.16(b)
in making this submission.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs